McDowell & Ors v Sea Fisheries Protection Authority

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL 2023/321CA [2026] IECA 71 Hogan J. Pilkington J. Butler J. Between/ NOEL MCDOWELL, KILLYBEGS FISHING ENTERPRISES LIMITED, KILLYBEGS SEAFOODS UNLIMITED AND THE KILLYBEGS FISHERMEN’S ORGANISATION LIMITED. Appellants AND SEA FISHERIES PROTECTION AUTHORITY (NO.3) Respondent RULING of the Court as to costs delivered the 1st day of May 2026 2 1. In these proceedings the appellants challenged the validity of a decision of the Sea- Fisheries Protection Authority to insist on the quayside weighing at Killybegs, Co. Donegal of certain fishing catch in the presence of authorised officials at a time (October 2020) when a derogation, by means of a control plan, for the Member State in question was in existence for the purposes of Article 61(1) of the Council Regulation (EC) No. 1224/2009 of the 20th of November 2009 (“the Control Regulation”). In the High Court, Phelan J. dismissed this challenge in a judgment delivered on 3rd November 2023: see McDowell v. Sea Fisheries Protection Authority [2023] IEHC 603. 2. The appellants subsequently brought an appeal against that decision to this Court. We initially gave judgment in the first appeal on 11th July 2024: McDowell v. Sea Fisheries Protection Authority (No.1) [2024] IECA 171. As a result of that decision we made a reference to the Court of Justice of the European Union (“CJEU”) of certain questions pursuant to Article 267 TFEU. 3. That Court delivered its judgment on 30th October 2025: see Case C-546/24 PN, Killybeg Fishing Enterprises Ltd. (EU:C:2025:844). It is probably fair to say that this argument was comprehensively rejected by the Court of Justice in its judgment. Notwithstanding the existence of a Control Plan which permitted weighing the catch in a factory setting, the CJEU confirmed that the Authority retained the power to conduct an inspection and for that purpose to weigh the catch immediately upon landing at the quayside. 4. The issue which arose in the rest of the second appeal relates to rationality and reasonableness rather than vires. The case made here by the appellants was that these inspection powers were not reasonably exercised because, in essence, the then weighing systems which were in operation at Killybegs did not allow for the separation of the 3 species and there was, accordingly, no provision for an accurate weighing of the fish that were in fact landed. We delivered our second judgment in this appeal on 18th March 2026 in which we rejected the appellants’ case in respect of these issues as well: see McDowell v. Sea Fisheries Protection Authority (No.2) [2026] IECA 37. 5. With this present ruling the Court is now called upon to determine the issue of costs. The background facts and the legal issues are well known to the parties and are, in any event, set out in the two judgments of this Court. The respondent has been entirely successful in defending these proceedings, so the starting point is that the respondent is presumptively entitled to their costs: see s. 169(1) of the Legal Services Regulation Act 2015 (“the 2015 Act”). This sub-section does not, however, preclude the Court from taking other considerations into account, including the extent to which it was “reasonable” to litigate a particular point. We will return to this point shortly. 6. So far as the Article 267 TFEU reference is concerned, we consider that the respondent is entitled to the costs of that reference. As the judgment of the CJEU makes clear, that case was not a particularly strong one even though it was the appellants who pressed for that reference. The judgment of the CJEU could fairly be said to be predictable. This was a discrete legal issue which was, to some extent, independent of the other factual and legal issues in the case. 7. With regard to the other issues, we consider that the appellants were nonetheless entitled to raise other issues with regard to the vires and reasonableness of the Authority’s actions. At the time the Authority announced a change in its inspection practices, the quayside landing weighing infrastructure in Killybegs was somewhat underdeveloped. The Department of Agriculture, Food and the Marine had operated a somewhat old- fashioned weighbridge at Killybegs, so that if the water was not separated from the fish 4 in the receptacle to be weighed, the resulting weight included both fish and water. To facilitate the separation of fish catches from the water in which they had been stored and consequently achieve a more accurate weighing of the fish, the Authority arranged for the availability of a water separator or "hopper" at the quayside at Killybegs. 8. This suggestion, however, was met with a variety of objections raised by the appellants (and others) who maintained that the water separator did not meet modern hygiene and food safety standards. They also contended that the removal of the fish from the refrigerated sea water in which it was stored prior to its transport to the fish processing facility damaged the quality of the fish. The appellants emphasised the fastidiousness of many Japanese (and other) buyers when it came to fish quality and drew attention to their personal experiences of these buyers who would refuse to purchase if there had been even the slightest drop in the quality of the fish. 9. There were also concerns that the new quayside weighing practices would result in inaccurate returns, precisely because of the issues concerning water separation. 10. In its second judgment delivered on the 18th March 2026 the Court ultimately rejected the argument that the Authority had acted unreasonably in conducting a quayside inspection at Killybegs in October 2020, even though it was accepted that the weighing facilities then obtaining at the time in respect of pelagic fish were not fully satisfactory. We noted that the CJEU had ruled in the Article 267 reference that the Authority must have the right to carry out such inspections as an integral part of the Common Fisheries Policy, even where there was a Control Plan then in place. We held that in those circumstances we could not invoke a national administrative law argument (i.e., reasonableness) in order to disable the exercise of the Article 60(6) inspection power in a manner deemed to be essential by the CJEU to the proper functioning of the EU law. 5 11. We acknowledge, however, that the issues raised as to the weighing practices were significant and important. We consider that for the purposes of s. 169(1)(b) of the 2015 Act, it was “reasonable” for the appellants “to raise, pursue or contest” these issues in these proceedings. While we must give full weight to the fact that the respondent was “entirely successful” in their defence of the proceedings, we nonetheless consider that it would be just if some acknowledgment were also given to the fact that the appellants could legitimately litigate aspects of the quayside and weighing practices then in operation in Killybegs in October 2020 which they considered to be unsatisfactory. Conclusions 12. Having considered all of these factors, the Court considers that the fairest outcome would be that we should order as follows: 13. First, that the respondent is entitled to the costs of that part of the appeal associated with the request for and the determination of the Article 267 reference (i.e., including the hearing in Luxembourg and that part of the first appeal that is fairly associated with the request for a reference). 14. Second, that the respondent is entitled to 50% of the High Court and Court of Appeal costs (other than the costs associated with the Article 267 reference), such costs to be adjudicated in default of agreement between the parties.